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The lonely pamphleteer

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27

From the Winter 2005 issue of The News Media & The Law, page 27.

Each individual whose public speech was restrained by courts in California, Nebraska and Vermont may appear at first glance to be what the U.S. Supreme Court called a "lonely pamphleteer"  one who deserves the same First Amendment protection as the mainstream media. But the analogy may not be appropriate.

The phrase derives from the 1972 decision Branzburg v. Hayes, holding that the Constitution does not require a special privilege for reporters. In explaining one problem associated with a reporter's privilege, Justice Byron White wrote for the majority, "Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."

Neither Ulysses Tory, Tim Campbell nor Scott Huminski claim to be journalists. And Tory's case does not raise the issue of who should receive First Amendment protection, said constitutional law expert Erwin Chemerinsky, who will argue Tory's case before the high court in March.

"This is a different set of principles," he said. "The Supreme Court has never recognized a constitutional privilege for reporters. Branzburg v. Hayes rejected it. [But] the Supreme Court has recognized that injunctions aren't allowed in defamation cases, going back to Near v. Minnesota"  a case in which the high court invalidated a prior restraint issued against a newspaper publisher for libeling various public officials.

"One of the difficulties in the context of reporter's privilege is drawing a distinction as to who is a reporter," Chemerinsky continued. "We're not arguing for, and neither is [Johnnie Cochran], any distinction to be drawn based on the identity of the speaker."

In Huminski's case, the U.S. Court of Appeals in New York City (2nd Cir.) said that he "apparently thought himself to be a legitimate gadfly  a quintessential example of . . . 'the lonely pamphleteer.'" Indeed, the court upheld his rights of free speech and judicial access, despite a history of behavior that some court personnel interpreted as threatening.

And although it noted that "an argument might be crafted that putative gadfly Huminski is an example of the 'lonely pamphleteer' with a claim on 'liberty of the press' posited by Justice White in Branzburg v. Hayes," the Second Circuit in Huminski's casealso saw no need to differentiate between "those who can legitimately assert that they are entitled to protection under the First Amendment's free press clause and those who cannot."  KK